August 10, 2012

Family Law: $350,000 Pendente Lite Fee/Costs Order To Wife Sustained On Appeal

We have many times explored the nuances of Family Code sections 2030-2032, which allows a party to a dissolution proceeding to seek a need-based attorney’s fees award at any time by fling a motion or order to show cause (OSC).

In Marriage of McConnell and Gregg, Case No. G045853 (4th Dist., Div. 3 Aug. 9, 2012) (unpublished), the appellate panel sustained a substantial “forthwith” $350,000 pendente lite fee award to wife (broken down as $300,000 in fees and the balance in costs). Although both sides spent comparable fees ($300,000--yikes!), the record showed husband’s attorney had been paid while wife’s attorney litigated a months-long trial without payment. The appellate court sided with the trial court’s decision that husband could pay based upon conducting a dental practice and selling dental devices developed prior to marriage.

In this area, the trial court can consider salary, income/assets, and ability to earn. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769 (1984).) The record did show husband had the upper hand in these areas, especially controlling a dental practice where he received substantial compensation and perks despite claims of a downturn with the recession.

The appellate court rejected husband’s argument there is a legal requirement that a trial court make findings on the parties’ relative incomes. Rather, section 2030(a)(2) required findings on certain factors, but income is not one of them. The lower court did properly consider--which is what must be done-- the relative financial positions of husband and wife.

There was nothing unfair about the fee award, because the statutory scheme “allows for the possibility that one party will pay for lawyers for both parties”--in this case, a $700,000 hit for husband.

All three justices (Rylaarsdam, Bedsworth, and Aronson) agreed the award should be affirmed, but Justice Aronson in a concurring opinion would have remanded the matter to consider husband’s installment payment request because he believes there was insufficient evidence husband had the necessary liquidity to make a “forthwith” immediate payment of $350,000 to wife’s attorney.